William Emanuel, formerly ofLittler Mendelson, testifies at his confirmation hearing in July2017. (Photo: Diego M. Radzinschi/ ALM)

The National Labor Relations Board on Mondayretreated from its drive to overturn the Obama-era expanded “joint employment” standard, as questionsmounted over whether a Trump-appointed member of the board violatedethics rules when he participated in a pending case.

The NLRB inspector general, David Berry, said in a report this monththat William Emanuel should not have voted in theHy-Brand case to overturn the Obama-erajoint-employment standard. Berry said Emanuel's vote in the caserevealed a “serious and flagrant” ethics problem at the agency.Emanuel's former law firm, Littler Mendelson, represented a partyin the Obama-era case the Hy-Brand ruling overturned.

Chairman Marvin Kaplan, along with his Democratic colleaguesMark Gaston Pearce and Lauren McFerran, voted unanimously Monday tovacate the Hy-Brand decision. The move returns the board to theObama-era precedent set in Browning-Ferris Industries, which openeda wider door for holding companies accountable for franchisees andcontractors.

The NLRB's ruling Monday said the board's “designated ethicsofficial” determined that Emanuel “is, and should have been”disqualified from participating in the Hy-Brand case. As part of astring of business friendly decision, Emanuel, Kaplan and thenchair Philip Miscimarra voted to overturn the case in December.Miscimarra has since returned to Morgan, Lewis & Bockius.

The inspector general's report found that the decision tooverturn Browning-Ferris—through the Hy-Brand case—was linked tothe previous case, making it inappropriate for Emanuel toparticipate. Littler Mendelson represented one of the companies inthe Browning-Ferris case.

Jim Faul, a St. Louis-based attorney at Hartnett GladneyHetterman who represented the workers in Hy-Brand, welcomed theboard's action Monday.

“The fired workers have still not been made whole from theemployer's unfair labor practices, but their ability to stand upfor other workers under the NLRA has been vindicated again,” Faulsaid. “This decision is an important reminder the NLRB is anindependent agency that does indeed take its responsibilities andobligations seriously.”

Michael Avakian of Washington's Wimberly, Lawson, Steckel,Schneider & Stine, who represents Hy-Brand, did not immediatelyrespond to a request for comment.

Democratic leaders and union representatives had called for theHy-Brand decision to be overturned. Bloomberg reported Monday thatDemocratic Sens. Patty Murray and Elizabeth Warren indicatedanother inspector general report was imminent that would addressEmanuel's misconduct.

Meanwhile, Morgan Lewis partner John Ring, Trump's pick toreplace Miscimarra, is heading soon to the Senate for hisconfirmation hearing, where he is expected to face similarquestions about ethics and recusals.

Monday's NLRB vote further complicates pending litigationchallenging the Obama-era joint-employment standard.

The Browning-Ferris case had been pending review at the U.S.Court of Appeals for the D.C. Circuit when the Trump-led NLRB movedquickly to undo the decision. The appeals court, at the request ofthe NLRB, returned the case to the board. The D.C. Circuit had notyet issued a decision on whether the new standard inBrowning-Ferris was lawful.

Susan Garea, who represents the union in Browning-Ferris, saidMonday: “The board's decision, without Member Emanuel'sparticipation, to vacate Hy-Brand was, simply, the right thing todo. It remains to be seen whether the board will take all necessaryaction to correct the harm done. But this is an important firststep.”

Emanuel, in a Jan. 26  letter tomembers of the Senate Health, Education, Labor& Pensions Committee, addressed the alleged conflict. Emanuelsaid he was unaware Littler Mendelson represented a party in theBrowning-Ferris case and would recuse himself in the case when itreturned to the board.

Emanuel faced ethics scrutiny ever since he was confirmed to theboard in September. On the day he was confirmed, Outten &Golden's Justin Swartz filed a motion urging him torecuse himself from several cases involving his former firm.Emanuel, responding to a letter from Senate Democrats, said hewould recuse in dozens ofcases.